Government thinking about FOI changes needs a full airing before, not after decisions

The Fairfax Media report that Cabinet is reviewing/has reviewed Freedom of Information fees and charges, and the recommendations from the Hawke review is not surprising. 

They had to get around sometime to looking at the report to the then Attorney General by Australian Information Commissioner Professor McMillan on charges completed in February 2012, and the Hawke review report completed well over a year ago. 

But both reports, and the Government's thinking about the issues raised deserve a thorough airing that they haven't received to date.

More cost recovery and the search for disincentives to ease the workload are likely the catalysts for action on charges.

Some recommendations ( boosting informal or administrative access) in the McMillan report are sensible improvements, but others such as the flat 40 hour limit on processing time are not. 

There are also issues not addressed in the report that flow from the decision announced in  Budget 2014 to abolish the OAIC.For example, the going rate for a review application to the Government's preferred one tier at the Administrative Appeals Tribunal is since 1 July $861, and that's for starters.

A detailed examination of FOI processing, resourcing and costs should be undertaken before any changes to the charging regime.

The claim that FOI costs something close to $50 million a year to administer has been run up the flag without any evidence as to agency efficiency and effectiveness in carrying out FOI functions or any examination of the benefits side of the equation. This at a time when there is much self congratulation about the 'free data' voluntarily released by government agencies that fueled Gov Hack gatherings across the country at the weekend and may deliver big economic and social dividends.

But free access to what the government voluntarily releases and increased charges over and above what can already be hefty imposts for access to the information government isn't pushing out the door will take some explaining.

How much of the FOI administrative costs can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications, and gaming the system by putting applicants through the run around, we don't know. Professor McMillan didn't go there nor did Dr Hawke. It's no doubt the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.

As to the Hawke report (pdf), cherry picking the bits that appeal to those in the government shouldn't be on either. Dr Hawke had limited terms of reference, limited time, completed his inquiry apparently without any research or prying into  dark FOI corners, or talking much to anyone at all outside the Parliamentary Triangle. 

Hence his recommendation No 1

"..that a comprehensive review of the FOI Act be undertaken."

And this concluding observation: 

"I believe a complete rewrite of the FOI Act in plain language is now necessary, so that it is readily accessible and easily understood."

FOI fees and charges back in the frame?

The issue of FOI fees and charges has been sitting in the in-tray in Canberra waiting to be dusted off again when the time is ripe. And that time might be now given the the National Commission of Audit is reporting on the performance, functions and roles of the Commonwealth government and 'everything' is said to be on the table.

Apart from the occasional leak, intended or otherwise, it seems likely the Government will sit on the report, the interim said to run to 900 pages, pick what it chooses to act upon and release at the same time it makes those announcements in the Budget statements on 14 May.

I doubt Treasury, Finance and others missed the opportunity to run up the flag the claimed high costs associated with Freedom of Information, the increase in use of the act and the relatively small amount of cost recovery in the way of collected charges. All leading almost certainly to suggestions for increased fees and charges, at a minimum along the lines advocated by Australian Information Commissioner Professor McMillan two years ago.

The main concern about any changes is that that no one appears to have looked closely, if at all, at efficiency and effectiveness in the administration of Freedom of Information and how this contributes to cost, or at the benefits side.

The latest ball park for total cost across government of $45.3M in 2012-13, plus an additional $3.1M for the Information Publication Scheme and approximately $5M for OAIC FOI and information policy work.

But to say again

The $45 million represents agency estimates. How much of the cost can be attributed to inefficiency, failure to invest in technology, refusal to make sought after information available promptly and at lower cost without the need for formal applications,gaming the system by putting applicants through the run around, we don't know.  Dr Hawke apparently didn't inquire. Probably the tip of an iceberg but take a look at the pedantic, bureaucratic and no doubt costly to the taxpayer correspondence generated by applications made through Righttoknow.)

(Interesting to see that this post written in February 2012 about agency submissions - grumble, grumble - to the review by Professor McMillan is at the top of the most viewed posts in the sidebar.)

Ideally a detailed examination of FOI processing, resourcing and costs should be undertaken before any changes to the charging regime.

While a case can be made for some of the changes proposed by Professor McMillan, that doesn't extend to his recommendation of a flat 40 hours limit on processing time for any single application. The existing test of 30 odd years standing of a limit based on substantial and unreasonable diversion of resources requires consideration of the nature of the application -something along those lines should stay.

As well, there needs to be something to encourage efficiency and speedy processing, not a de facto reward of "time's up" placed within reach of those who dawdle, obfuscate and are inefficient.

An informed debate before decisions are taken would be more consistent with an interest in broadening participation in government than a decision based on a Commission of Audit report not seen outside government until the decision is taken.

Robbo's bright ideas lead government to 1689 and bring Sir Humphrey centre stage

The NSW Opposition leader John Robertson's latest idea is a good one: that interest disclosures by NSW parliamentarians should extend to family members and be posted online. Required disclosures are limited to the member's interests-hence a discounted car given to the wife of the then treasurer didn't need to be included- and are available for inspection on week days during business hours in Macquarie St.The corresponding federal parliament requirement to notify registrable interests includes those "of which the Member is aware of the Member’s spouse and any children wholly or mainly dependent on the Member." Premier O'Farrell responded that the Privileges Committee should take a look-presumably to see if this would have been OK in 1689.

Mr Robertson's previous transparency idea was the bill seeking to give effect to a promise to abolish GIPA application fees made by the now governing Liberal Party before the last election, a bit of an attempt at political points scoring. Predictably it didn't get anywhere. The government voted it down in the Legislative Assembly on 21 November.

The application fee in NSW of $30 (an agency may waive, reduce or refund the fee ) has remained the same since 1989. It is no big deal although if information access is a right, it could be argued that you shouldn't have to pay to exercise it.

However the resumed parliamentary debate on the bill had me wondering whether Antony Jay and Jonathan Lynn who wrote the Yes Minister series had snuck into town and were now writing briefing notes to be shared among government members. He wasn't alone but Andrew Cornwell Member for Charlestown takes the Sir Humphrey prize:

In a tight fiscal environment we should think about the effect on, say, a university that is subject to the Government Information (Public Access) Act. Most universities have a full-time employee actively dealing with Government Information (Public Access) Act applications, with the $30 fee, under the current arrangement. Universities are afraid that removal of the $30 fee could result in the number of applications multiplying tenfold or a hundredfold. That would result in decreased services for students and increased costs to universities, and it would affect people's ability to deliver better educational outcomes for our kids. Some applications request information from 20 years ago. People have a right to make Government Information (Public Access) Act applications but they are subject potentially to misuse..

......Imagine the increase in middle management that would result from opening up, carte blanche, Government Information (Public Access) Act applications. Organisations, businesses, government departments and other government agencies that are getting on with delivering services to the community would end up with a reduced number of people on the front line and a bloated middle management dealing with thousands of difficult, potentially vexatious and problematic Government Information (Public Access) Act applications that have no relevance to the actual service delivery of those organisations "

He probably ran out of time before he got to the part that hospital beds and libraries would need to close.

As grave predictions were made about what would transpire if the application fee was abolished, no one mentioned how much in application fees is collected a year. Or the cost in agency time and resources of collecting fees, particularly as the vast majority of agencies in NSW don't allow payment on-line (from the Attorney General's own department: "enclose the $30 application fee (cheques and postal orders made out to 'NSW Department of Attorney General and Justice'). 

My guess is it is way in excess of $30 every time a cheque or money order, for heaven's sake, comes in. But apparently well worth it to keep the hordes at bay, if government speakers are to be believed.

No-one mentioned that agencies are encouraged to provide free of charge information in response to an informal request under the GIPA act if there are no public interest reasons why it should be kept confidential. Or whether the barbarians at this gate are numerous enough that we should rethink this dangerous idea.

And no-one provided a scrap of evidence to support claims that the effect would be negative all round. While advice from the Information Commissioner NSW was cited, the report on a review that commenced in October 2011 on fees and charges has not been published. 

The recent comment by the Australian Information Commissioner that abolishing the application fee had had knock on effects in the Commonwealth jurisdiction but he wouldn't be recommending its reintroduction apparently passed everyone by.

The Greens Jamie Parker on the cross-bench provided a touch of realism and sanity.

As to the rest, not parliament's meatiest debate or finest hour.

Another good idea if Mr Robertson is looking for one, is the same on-line disclosure requirement for payments of entitlements to NSW parliamentarians.The annual report for 2011-2012 of the Department of the Legislative Assembly has been published recently. Annual reports by the Department of Legislative Council appear to have gone missing for the moment at least. The only place you find any information about entitlement payments to  assembly members is in Appendix G of the report - global amounts no details. (While not complete because it does not include payments made by the parliamentary departments, and is not close to real time, detailed disclosures regarding payments to or for federal parliamentarians by the Department of Finance and Deregulation are published online, and more regularly than once a year.)

What's 30 bucks?

All that's standing between government agencies in NSW and more requests for information than they can handle?

A couple of comments received following that posting last week about the NSW GIPA act included one from a journalist with a lot of FOI experience to the effect that scrapping the $30 application fee for GIPA requests would be a huge mistake in NSW on the basis of Commonwealth experience:

FOI units get inundated with every single ill-considered thought bubble application from nuff-nuffs, political crackpots and Opposition staffers demanding “all documents relating to…”. The end result is a choked, overloaded FOI system where the objective of the FOI unit is simply to rid itself of its growing stockpile applications. With Federal FOI requests, I repeatedly find a lack of thoroughness in the searches and responses. The $30 fee is a sensible – and hardly expensive – hurdle that make applicants stop and think about their request for a bit. There are not endless resources in the public sector."

There is plenty of room for debate about fees and charges that goes beyond what and who is a nuff-nuff, and what constitutes an "ill considered thought bubble" although we might find some common ground on the latter, including some requests by journalists that seem to fall into this category.

And of course the NSW fee isn't unreasonable, given it is the same now as it was when first set in 1989. Adjusting for inflation, that $30 would be be around $56 today. (The more significant issue is the barrier that charges can constitute to the exercise of access to information rights.)

As to Commonwealth experience, applications for non-personal information under the Commonwealth act are up since application fees were abolished and other minor changes made to the charges regime in 2010. However at around 5000 in the year to June across the entire government spectrum, pathetically low are the words that immediately come to mind. But it is up around 16% on the previous year. And it's true some agencies that have never been bothered much by FOI have had significant increases in FOI activity.

Submissions from government agencies to the review of charges by Australian Information Commissioner Professor McMillan- an inquiry now hand-balled to Dr Hawke with a "find how to reduce costs" plea - were as dark and gloomy as my journalist correspondent about what had happened within government agencies during the first year of the new charge arrangements. Lack of resources and presumably some cutbacks given the belt-tightening underway was and remains a legitimate complaint. 

However as I commented at the time:

 Some give the impression that dealing with an increased number of "non-personal" information access requests is a nuisance and diverts resources from the "real work" of advising and assisting government to develop policies and to manage programs to implement them. Amid those grumbles there is little acknowledgement that information access itself is a service, with citizen rights and agency obligations mandated by law, backed by policies including the Declaration of Open Government that give new prominence to accountability and transparency. All for the stated purposes of enhancing representative democracy through increased public participation in government, encouraging scrutiny, discussion, comment and review of government activities, and to recognise that government information is a national resource. Not to mention that Parliament intended that functions and powers set out in the FOI act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. (Sound familiar?-2010 FOI act amended objects, s3)The changes to charges and abolition of all application fees were conscious government decisions, taken in part to mitigate to a degree the cost barrier to use of the act. As Defence, and Agriculture Fisheries and Forests also point out in submissions, the administrative cost of processing $30 application fees far exceeded the return.The "not fair, applications are on the rise" tone in some submissions suggests the long anticipated culture change has a long way to run. As has public awareness of FOI, and public engagement in the affairs of government. Heaven forbid, even more use of the act could be in prospect.

 Research and evidence about cost, scope for efficiencies, and the impact of fees and charges on the exercise of rights to information would help the discussion in NSW, Canberra and elsewhere. Particularly experience in Tasmania where they retain a small application fee but have abolished all other charges. Floodgates?

In any event, I'm not holding my breath in anticipation of the O'Farrell government acting as it promised prior to the election by now supporting the Robertson bill to abolish the GIPA application fee.

 

The Nikita O'Farrell tag doesn't quite do it.

Leader of the NSW Opposition John Robertson introduced the Government Information (Public Access) Amendment (Removal of Application Fee) Bill into parliament last week giving the O'Farrell government the opportunity to deliver on a commitment made in the lead up to the election. Or not, as the case may be. Not a bad political ploy but the bill will languish in the pile that goes nowhere unless the government feels inclined to act.

The bill might prompt someone at the Office of Information Commissioner to dust off the file opened in October 2011 for a public consultation on fees and charges, the purpose of which was  "to see whether the fees and charges provisions help to promote the objects of the GIPA Act to maintain open and accountable government by facilitating access to information at the lowest reasonable cost."  Nothing has been said in the year since, publicly at least.

Mr Robertson apart from rubbing the government's nose in an undelivered promise, had plenty to say about access to government information under the GIPA act, referring to "deliberate" overcharging, and some refusals for questionable reasons of opposition requests, with an agency claim that the board minutes of Infrastructure NSW were Cabinet-in-confidence sounding a bit rich.

While performance information beyond the anecdotal is thin, Mr Robertson's claim that this is "the most secretive government in this State's history" is way off the mark. 

Pick any government that pre-dates Greiner and the introduction of the Freedom of Information Act in 1989, for example, including any from the long list of Labor governments. The late Peter Wilenski described NSW in the late 70's early 80's as a 'bastion of secrecy' and no-one demurred. Throw in the later improved but still barren decade for the open government cause from 1995 where even ministerial media releases weren't posted on the internet during the Carr era so as to avoid leaving discoverable footprints, and pleas from the Ombudsman for reform were routinely ignored. All power to Nathan Rees, still there in Mr Robertson's team, for steps in the right direction in 2008-2009. 

As to this 'killer' line, 'Joe Stalin' might have better suited Mr Robertson's purpose:

You would have got more information out of the Soviet Union under Nikita Khrushchev than you do under Barry O'Farrell in New South Wales. 

(Comparing tyrants isn't all that useful but Wikipedia comments on "The Kruschev Thaw" as allowing some freedom of information in the media, arts and culture that "all together helped liberate minds of millions and changed public consciousness of several generations of people in the Soviet Union." Positively enlightened compared to old Joe.)

With GIPA two and a half years on,18 months of that overlapping O'Farrell's time in office, it's a mixed bag. Journalists tell me generally things are somewhat better than the pre-GIPA days, adding plenty of caveats and exceptions. But a steady stream of individuals pass on to me tales of woe and classic runarounds. Frustration at the long delay in the Office of Information Commissioner in dealing with review applications is also high on the list of grumbles, heightened where the agency goes its merry way despite a recommendation from the OIC that it think again. 

There is a dearth of published information about the operation of the GIPA act, agency compliance with publishing requirements, or performance in dealing with informal and formal requests - another OIC file that needs retrieving and a dusting.

The Government Information (Information Commissioner) Act 2009 requires (s 37), in addition to an annual report on the work and activities of the office, a report from the commissioner on the operation of the GIPA Act generally, across all agencies "as soon as practicable after 30 June in each year."  The act commenced on 1 July 2010. No report has been published to date for the year to 30 June 2011, nor so far for the period ending 30 June this year. I've asked on several occasions where things stand-months ago the commissioner told me she was in editing mode on the 2011 report. The parliamentary presiding officers and the Attorney General are to get a copy-maybe its stuck there?

No one asked about the s 37 report or much at all about agency performance when the NSW parliamentary Committee on the Ombudsman, the Police Integrity Commission and the Crime Commission held a brief meeting (one hour four minutes) in May with the Information and Privacy commissioners to discuss the 2010 and 2011 annual reports on the operation of the office. 

No one asked either about whether the NSW external review model with an ADT and OIC option but limited OIC powers was working as hoped, or could be improved. 

Questions, questions.

Answers, please?

Australian Information Commissioner accused of lacking "teeth and ticker"

The 2012 Report on Press Freedom in Australia released by the Media Entertainment and Arts Alliance, Kicking at the Cornerstone of Democracy (see the full report here pdf), includes four articles on Freedom of Information. One unattributed (p 22) and one by academic Johan Lidberg (p 29) make reasonable points about shortcomings in the law and the system. Another by Christian Kerr of The Australian (p 20) provides a couple of FOI war stories. Then there is an article by Michael McKinnon, FOI Editor at the Seven Network (p 26) that makes some valid critical comments about the state of play but over-reaches in a couple of respects.

Michael McKinnon

McKinnon, a Walkley award winner in 2009 for leadership in this field, (and a winner for investigative journalism as well) has a great record as a vigorous applicant, has blazed many FOI paths, and is an exceedingly able advocate in his own cases in the tribunal and courts. He knows his FOI oats, so his observations about the state of the game deserve attention. However...

The heading, "An Unwelcome Freedom Rider" (probably not McKinnon's doing), is one of those ambiguous sub-editor smarty jobs, but in the context of what follows comes across as a personal shot about lack of ticker:

Freedom of information requests are all too often subject to unwarranted delays, bureaucratic wrangling and nit-picking refusals, writes Michael McKinnon The reformed FoI Act announced three years ago was to have its own watchdog, the Commonwealth information commissioner. But Seven Network’s FOI editor Michael McKinnon has found the watchdog lacks both the ticker and the teeth for the job

The watchdog could do with more teeth for sure in the form of powers to lay down the law and pull some out there on board, or in line. But the lack of "ticker" charge is unwarranted.


As to the article itself, the Commissioner Professor McMillan doesn't need me to defend his administration, or his views, but the following is a summary of what McKinnon had to say, with a few counter-points of my own.

(I notice Professor McMillan responded to recent commentary about the charges review by Perrin Brown of Monash University on The Conversation,. He is welcome to respond to this, as is Michael McKinnon.)

FOI charges review

Sorry to say I lost the original post somewhere while crossing the Atlantic as I tried to update it. Briefly it noted the publication of Professor McMillan's report, welcomed the idea of simplification but reserved comment until I have a chance to read the detail, and linked to some media coverage of the issue. Sorry.

Agency FOI fees and charges submissions are revealing

Professor McMillan

Australian Information Commissioner Professor John McMillan has probably signed off his report on the review of Commonwealth Freedom of Information charges, due to be in the hands of Attorney General Roxon about now, so we await the result with interest.

As to inputs,  FOI Editor at The Australian Sean Parnell seems to have been alone in digging into the published submissions and writing about them. The headline to his report of 30 December, Freedom of Information fees to soar if bureaucrats get their way, captured the essence of his summary.(Update: a more detailed report by Parnell on the submissions and FOI generally was published on 11 February-Counting the cost on new FoI)

Generally applications for non-personal information are up since application fees were abolished and other minor changes made to the charges regime in 2010.

I can understand that some applicants, and some applications, can be trying to say the least for those at the other end. So those agencies with more than their quota may be justified in complaining about a lack of resources to deal with the load, and about difficulties with aggrieved-for-whatever reason applicants who keeps going over and over the same ground. Agencies also clearly don't like the loophole exploited by some applicants in splitting requests to take advantage of the five hours free decision making time for each, the increased use of FOI as a cheaper alternative to discovery in legal proceedings, and free resort to OAIC review either.

The submissions reveal that some agencies are pretty dark about what has happened in the first year of the new charge arrangements, coinciding with broader changes to the law. Some give the impression that dealing with an increased number of "non-personal" information access requests is a nuisance and diverts resources from the "real work" of advising and assisting government to develop policies and to manage programs to implement them.

Amid those grumbles there is little acknowledgement that information access itself is a service, with citizen rights and agency obligations mandated by law, backed by policies including the Declaration of Open Government that give new prominence to accountability and transparency. All for the stated purposes of enhancing representative democracy through increased public participation in government, encouraging scrutiny, discussion, comment and review of government activities, and to recognise that government information is a national resource. Not to mention that Parliament intended that functions and powers set out in the FOI act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost. (Sound familiar?-2010 FOI act amended objects, s3)

The changes to charges and abolition of all application fees were conscious government decisions, taken in part to mitigate to a degree the cost barrier to use of the act. As Defence, and Agriculture Fisheries and Forests also point out in submissions, the administrative cost of processing $30 application fees far exceeded the return.

The "not fair, applications are on the rise" tone in some submissions suggests the long anticipated culture change has a long way to run. As has public awareness of FOI, and public engagement in the affairs of government. Heaven forbid, even more use of the act could be in prospect.

Without repeating too much of Parnell's angle, or attempting a comprehensive summary, some observations...

Fees and charges for FOI access

The Australian and NSW information commissioners both have discussion papers out for comment in connection with current reviews of charges for (Commonwealth) FOI and fees and charges for (NSW) GIPA access applications. The Commonwealth abolished application fees from 1 November 2010, and with some exceptions retains the charge regime unchanged for many years. NSW in essence retained the application fee ($30) and charges at the level set in 1989.

The OAIC paper reflects the Minister's terms of reference and provides comprehensive background and comparative information. Some might see the discussion being framed to some extent as a close examination of the case for an increase in charges and by how much. The first points as they appear in the Executive Summary are all about cost and revenue:

• The scale of charges set in the Freedom of Information (Charges) Regulations 1982 (the Charges Regulations) is not subject to indexation and has not increased since November 1986.
• Between the commencement of the FOI Act on 1 December 1982 and 30 June 2011, Australian Government agencies have reported a total cost of $498,364,739 to process the 906,639 FOI requests received during that period. The majority of requests are for documents containing personal information: in 2010–11, requests for personal information accounted for 82.63% of all requests.
• Since 1997–98, the cost of administering the FOI Act has steadily increased. However, the total amount of fees and charges collected has consistently been less than 5% of the yearly cost of administering the FOI Act, ranging from 0.33 % (1982–83) to 4.91% (1994–95) with the yearly average at approximately 2%.
• The volume of charges collected has decreased significantly from 78.72% of the charges notified in 1991–92 to 9.60% in 2009–10.

The closing date for comment is 21 November. Professor McMillan will be conducting public and agency consultations.

The focus of the NSW Consultation Paper is "on learning how government agencies apply the fees and charges provisions in practice, whether they consider the provisions to be working effectively, and inviting suggestions for improvement, keeping in mind the objects of the GIPA Act." The OIC has released a separate survey for members of the public, the media and non-government agencies.

I don't see a reference in the paper to the Premier's pre-election commitment (among others) to abolish application fees. Submissions close 31 December 2012.

Both reviews hopefully will look at  related matters such as whether the cost of dealing with requests by an individual for his/her personal information-a key element of privacy law- should be counted by agencies as an FOI cost. And other issues such as

• whether the administrative cost of keeping track of time and managing a complex array of charges is justified by the return, or other reasons,

• the cost/ benefit of maintaining or in the Commonwealth's case reimposing an application fee and abolishing charges, following a Tasmanian lead,

• ways to reduce cost through more pro-active disclosure.

• efficiencies in processing including through more and better the use of technology, and

• how poor/overly defensive decision making that results in high cost review applications can be improved.

Review of Commonwealth FOI fees and charges

WikiMedia Commons Dodo

Minister for Privacy and Freedom of Information Brendan O’Connor's Media Release announcing the promised review of Freedom of Information fees and charges by Australian Information Commissioner Professor John McMillan was going along nicely until this paragraph:

“In light of the current number of large, complex and resource-intensive FOI   requests being processed by the Government, it is appropriate for Professor McMillan’s review to consider the financial costs to the taxpayer of processing these requests.” 

There followed the reminder that in 2009-2010 there were "more than 21,000 FOI requests to the federal government, costing more than $27 million to process."

Some-not me of course-might see these references to cost as presage to discussion of  more cost recovery.

Expensive freedom of information

Darwin academic and former Northern Territory parliamentarian Ken Parish in "The high cost of free information" posted on Club Troppo last week, raised the high cost to FOI applicants of time spent retrieving and perusing documents the subject of an FOI request. Parish suggested an easy fix solution-“state-of-the-art” document management systems-that some might expect to be in place already given the millions/billions spent on ICT in recent years. That issue to one side, at Commonwealth level there is now five hours free decision making time, a better chance of  waiver or rebate on public interest grounds, and no charge for an application not dealt with in time. The Australian Information Commissioner is to report on the fees and charges regime towards the end of the year. Tasmania leads in this area- under its Right to Information Act, a small application fee remains but other charges were abolished.

$50000 a high water FOI mark

A freedom of information request by The Sun-Herald to the Department of Immigration and Citizenship to release a video showing guards removing asylum seekers from the Villawood detention centre in preparation for their return to Christmas Island after attending funerals for victims of the December boat tragedy has been granted - providing the paper pays $53,093.

The spluttering passed and the Sun Herald has lodged an appeal arguing that in the public interest the cost should be substantially reduced, if not waived. There might be a question also that the charge has been wrongly assessed, if as the paper points out it has someone who could pixelate and edit the video for privacy for $7500 compared to the Department's $38000 charge for this task.

Those involved will be thumbing through OAIC Guideline Part 4 – Charges for providing access PDF and the decision by Freedom of Information Commissioner Popple last month in Besser and Department of Infrastructure and Transport [2011] AICmr 2 (17 March 2011) PDF. Besser, a Sydney Morning Herald journalist succeeded in having charges for an application for a number of internal audit reports reduced by 50% after Commissioner Popple found the giving of access to the documents was in the general public interest.

Important considerations that swayed the decision in this case were that the disclosure of the documents sought would add to information that is already publicly known [16] and

"the content of the documents and the context of their release. I have not examined the 12 documents in question, but the schedule of documents reveals that a number of them are reports of audits of the Department’s internal operations (eg ‘Review of Corporate Credit Cards’ and ‘Review of Cash Withdrawals from Corporate Credit Cards’) and its external operations (eg ‘Airport Curfew Dispensation’, ‘Review of Better Regions’ and ‘Review of Nation Building — Economic Stimulus Plan programs’). These... have the potential to reveal important information about whether the Department is using Commonwealth resources consistently with its obligations under the FMA Act (such as the requirement to manage its affairs in a way that promotes the efficient, effective, economical and ethical use of Commonwealth resources)[25].

As Commissioner Popple points out a finding that giving access to the documents was in the general public interest justifies a decision to apply the 50% rebate, but it is irrelevant to matters yet to be decided by the agency regarding access and whether disclosure on balance would be contrary to the public interest:

29. The Department has not yet made — and is not required to have made — a decision whether to give access to the documents that Mr Besser has requested. If Mr Besser agrees to pay the reduced charge, then the Department will have to make that decision. In doing so, the Department may conclude that one or more of the public interest conditional exemptions in Division 3 of Part IV of the FOI Act apply. In that event, the Department will need to apply the public interest test in s 11B. That test is different from the public interest test for the purposes of deciding to reduce or to not impose a charge, which has been considered in this review.
30. The fact that giving access to documents is in the general public interest for the purposes of reducing or not imposing a charge (under s 29(4)) does not mean that giving access to those same — conditionally exempt — documents cannot be, on balance, contrary to the public interest (under s 11A(5)).

Yes, but the law in this respect is confusing nonetheless.

NSW legislative change represents (I hope) an improvement by providing for a 50 per cent reduction if the agency is satisfied that the information applied for is of special benefit to the public generally.

FOI can cost a packet, so fine print on discounts warrants a close look

Aussie Legend WikiMedia Commons

Access to government information under right to information laws can involve more than a brass razoo, except in Tasmania where an application fee but no other charges apply. So circumstances where waiver, reduction or rebate may be available are of particular interest to those who use the acts. In NSW the now repealed Freedom of Information (Fees and Charges Order) 1989 relating to circumstances in which a rebate could be given on "public interest" grounds gave rise to problems, suggesting as it did that the issue came down to whether there was a public interest in disclosure of requested documents. Clause 6 provided (emphasis added):

The fees and charges payable by-
...
(e) an applicant whose application relates to information that it is in the public interest to make available are to be half the fees and charges that would otherwise be payable in respect of that application."

The replacement Government Information (Public Access) Act, reflecting recommendations in the Ombudsman's 2009 Report, took a different approach, clearly distinguishing the decision on a rebate on charges from a decision concerning access to the requested information. S 66 provides:

Discounted processing charge—special public benefit

(1) An applicant is entitled to a 50 per cent reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally...

(3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.

The NSW Information Commissioner has released Guideline 2: discounting charges – special benefit to the public generally.  Overall useful and less legalistic than other schemes, but two issues worthy of comment, and a query about whether FOI charge systems are worth all the effort.

FOI 101: read the act and Guidelines urges Commissioner.

The Australian Information Commissioner, as reported by Sean Parnell in The Australian today:

"The message of cultural change has certainly got across, including at the highest levels in government," Professor McMillan said. "But I'm also struck by the number of instances in which officials making decisions have just not adequately read the new act or the guidelines. "They've made decisions that clearly show they're not up to date with the detail of the new law." Professor McMillan said the mistakes were not deliberate -- "simply ignorance" -- but would be reflected in decisions by his office."

I haven't been through the Commissioner's Guidelines in any detail. Of particular interest is Part 4 on conditional exemptions and the application of the public interest test. But one user of the act, on reading those relating to charges (Part 6) told me yesterday:

"You'd need to be a lawyer with a retinue of lackeys to be able to remember all the exceptions and convoluted reasoning behind all that crap. No wonder lawyers charge like the proverbial. It is mind-numbing stuff."

There is also the question of what meaning to attach to the legislative requirement that an agency "must have regard to" the Guidelines in performing a function or exercising a power under the FOI Act (s 93A(2)). That's something short of "must act in accordance with" or similar words that would give them binding character. They mean "can't be ignored" but....

I'd be interested in any views on this.

With regard to charges, there is still plenty of room for distress and dismay on the part of applicants when faced with the bill for an application for non-personal documents, and for argument about the equity of the charges regime. Parnell refers to one aspect, in the context of the public release of documents:

Good and welcome news on Federal FOI charges

Minister for Privacy and Freedom of Information Brendan O'Connor yesterday announced the Government's fees and charges for the reform regime to commence on 1 November, and covered similar ground and a bit more in this answer to a question in Parliament. The new element, beyond what was first announced in March last year, and the subject of a draft regulation in December, is that all applicants will be given up to five hours of decision making time on an application free of charge.The previous proposal was that journalists and non profit organisations would enjoy such a concession. In a submission in January I argued this discriminated against John and Mary Citizen seeking to access information consistently with the new object of the act to increase participation in government processes, or to scrutinise government actiivity, quite apart from issues associated with difficulties in defining a journalist in this day and age.

Combined with the abolition of application fees, removal of all charges for access to personal information, and no charges where an application is not dealt with in time, this will be a big step towards reducing the cost barrier that has stood in the way of more widespread use of the FOI act for the last 28 years. The changes are as follows:

Fee	Now	From November 1
Application	$30	No fee
Search and retrieval	$15 an hour	No change - $15 an hour
Decision making	$20 an hour	First five hours free, after that $20 an hour
When FOI request is not responded to within the statutory time limit	Normal fees apply	No fees
Internal review	$40	No fee

Tasmania still leads in this area having abolished all processing charges while retaining the application fee.

Australian Information Commissioner: drum roll please

The Office of Australian Information Commissioner website is up and running today, with that office, including the integrated Office of the Privacy Commissioner, and the Freedom of Information legislative reforms (other than the publication scheme requirements) to commence from 1 November. This OAIC Fact Sheet summarises what’s changed in FOI.
(An official launch of the Office will take place at Parliament House Canberra on 1 November.)

Yet to appear is the regulation containing changes to fees and charges. In March 2009 the Government announced proposed changes including abolition of all application fees; that no charges will apply to applicants seeking access to their own personal information; that for all other applications, the first hour of decision-making time will be free (except for journalists and not-for-profit community groups where the first five hours of decision making time will be free); and applications not decided within the statutory time frame will be processed free of charge.

A Draft Regulation was released in December 2009, but is no longer posted on the FOI Reform webpage.

In this submission I raised a number of issues including the dangerous idea that in order to encourage the stated objects of reform, charges rather than application fees should be abolished to address the problem of the high cost barrier to access. Not holding my breath on that one, but Tasmania managed it.

The submission perhaps more realistically raised points about the special charges concession of five hours proposed for a journalist, a term not defined in the draft, but left to each agency to apply where "reasonably satisfied" a person was a journalist applying for documents in connection with activities as a journalist. Issues such as why five hours, why not for John and Mary Citizen also seeking to hold government to account, who is a journalist, and would bloggers and citizen journalists be left to try to argue it out with every agency?

All will be revealed soon I imagine if the new regime is to take effect from 1 November.

Pleased to see in another context that the bill introduced by Opposition Shadow Attorney General Brandis on a shield law for journalists follows the NZ approach of defining journalist and news medium in a way that would seem wide enough to cover "new journalism":

Journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium. News medium means a medium for the dissemination to the public or a section of the public of news and observations on news.

SA travel costs-$77,000 first, please

South Australia not only seems to be stuck with Victoria as our Freedom of Information reform laggards, it also seems to be stuck in the pre-computer age when the travel costs of public servants can only be found after a search of mounds of paper records. This by Brad Crouch in The Sunday Mail:

The travel cost of rural health bureaucrats will remain a state secret after the Opposition baulked at a $77,000 bill to seek the information under Freedom of Information laws.  The Opposition's health spokesman, Duncan McFetridge, sought the information from Country Health SA for the past 12 months of travel, but was told it was contained in some 14,000 documents. The cost for processing the first 5000 documents was put at $27,624, indicating the total bill would be $77,000. Mr McFetridge's failed FoI bill now stands at $246,700, after he also unsuccessfully sought information about the business case for the new Royal Adelaide Hospital as well as the cost of the expensive medical contract dispute on Kangaroo Island. "This is all information that should be readily available to the public," Mr McFetridge said. He claimed his FoI requests were being denied on the basis of "censorship by semantics and pedantics". Health Minister John Hill did not answer inquiries on the issue.

Curiosity or legitimate public interest?

Roll on that foreshadowed culture change. In the meantime...

Stephen Kirchner of Institutional Economics and the Centre for Independent Studies writing in The Australian today, recounts efforts, including finally a successful Freedom of Information application, to obtain a copy of a speech last September by Executive Director of the Foreign Investment Review Board whose other hat is General Manager of the Trade and Foreign Investment Division in Treasury. What to make of attitudes to the free flow of information where a speech on an important topic the subject of wide debate isn't routinely posted on the web, and requires a formal application? And as characterised by rejection by Colmer of an application for waiver of the $30 application fee on public interest grounds:

"mere curiosity on the part of a person or a substantial section of the public will generally not constitute a public interest ground. I am not satisfied there is a public interest sufficient to warrant the waiver of the $30 application fee in this case"

Mere curiosity? More like a legitimate public interest in informed discussion and debate on a matter of major national significance.

Kirchner says the speech is still not available from the FIRB (how will they cope with the  disclosure log proposed in the FOI Reform Bill?) but he has posted a copy on his website, as he says, for the benefit of the many foreign investment professionals and journalists who also suffer from "mere curiosity".

Tough and expensive going getting behind Climate Change

Mike Steketee in The Weekend Australian  had a follow up piece on attempts by Richard Denniss of The Australia Institute to access under the Freedom of Information Act, documents held by the Department of Climate Change, this time those prepared to help inform Minister Penny Wong and her advisers of the details, merits, limitations and criticisms of the Emissions Trading System. Broad requests of this kind aren't the best way to frame an FOI application but you can understand why Denniss went this way, as a previous attempt had been interpreted narrowly so he  missed everything but inconsequential documents.

You guessed it: the Department said it holds 210,507 relevant documents and told Denniss  the bill would be over $256,586.98:  $73,102.58 for search and retrieval for 4873.505 hours work, $141,383 for 7069.15 hours of decision making at $20 an hour and $42,101.40 for the possible release of 210,507 documents of an average two pages at 10c a copy. And it still reserved the right to knock him back entirely on grounds of substantial and unreasonable diversion of resources.

What it points up is that applicants who want to get behind government decisions have the dice loaded against them.There are no tools available to assist an applicant before making an application to know what documents exist; applications drafted too narrowly may miss entirely; those drafted broadly to avoid this fate run into cost and delay hurdles. All this before anyone examines the documents to see what might be claimed exempt. In this case Steketee says the Department wouldn't help the applicant by telling him how charges could be reduced if he tweaked his application to cut out costly aspects that were unlikely to contain information of the kind he was really after.

There is something wrong with a system where an attempt to find out what government's advisers think about a scheme to address what it says is the greatest challenge of our times will take 4800 hours to locate and extract documents, presumably using highly sophisticated technology, and 7000 hours to decide what can be released.

The Rudd Government's culture change and new law promises may not deliver much improvement. Steketee says the department assured him that in dealing with the application "it has taken into account the provisions and the spirit of the new legislation, even though it is not yet in force and it is mindful of the obligations placed on it by the proposed reforms."

Well, The Australia Institute as a non-profit will presumably automatically qualify for 5 of those 11942 hours of processing time free under the proposed new charges regime. John or Mary Citizen pursuing the same inquiry won't.

Journalist credentials- by hypnosis

Richard Ackland has a column in today's Sydney Morning Herald  in which he asks, as more information is sought online, where this leaves journalism and the cosy codes that govern the conduct of journalists? In other words who is a journalist in an online world of bloggers and others in which news people make the "awful discovery" that any number of readers know infinitely more about the topic being reported than the journalist who delivers the goods?

The issue was also canvassed here recently in the context of Freedom of Information charge concessions that the Federal Government proposes, which would involve each government agency determining on reasonable belief that the applicant is a journalist. I've suggested that any test should be based on functions- the gathering and analysis of information for dissemination or possible dissemination, or in order to promote scrutiny, discussion, comment or review of Government activities - not someone's right to or credentials for a label, should be the determining factor. That is of course if journalists of any stripe deserve the proposed better treatment than John and Mary Citizen who might be out there pursuing the object of the FOI Act by seeking to scrutinise government activity.

But if the proposals go ahead, and being able to prove you are a journalist becomes important, applicants should invest in the CD Ackland says promises to teach journalism by a ''subliminal technique'', and wave proof of purchase in front of any government agency that queries their status.